Whatley v. State

ords that meet at least one of

criteria:

(1) definition, itself, which, by original self-authenticating; which, original, copy a certified 1001(3), 902, Rules

under original. treated as an

defacto copy “duplicate”

A fax well be a under 1001(4), require- it

Rule but fails to meet the of Rule 1005. The record below does

ments any

not reveal the State introduced testimo-

ny by compared copy who the fax witness (or original copy) and to the certified copy

then testified the fax was a correct and Second, only copy orig- of same. an

accurate meets the au-

inal attestation/certification requirements

thentication of Rule 902 with

respect copy. purports What copy

authentication of the fax itself, only copy purports

case is of what

be an authentication.2 my opinion, the admission of facsimile

copies original without an attestation/certifi- by permitted

cation is not the Texas Rules of Evidence, currently written.3 respectfully dissent. MEYERS,

BAIRD, OVERSTREET and

JJ., join. WHATLEY, Appellant,

Don Texas, Appellee. STATE

No. 154-95. Texas,

Court Criminal

En Banc.

May effect, provide p. copy, original Chap. Sections an attesta- a fax absent copy. complying copy copies. tion with Rule is a facsimile To do so the admission of such, would, not admissible under Rule 1005. my opinion, As be an method authority. improper of our exercise Rules, pursuant may amend the 3. This Court Leg. authority granted it Acts 69th

I. dispense We with a recitation of the facts except they are relevant to the issues before us. The indictment the instant allege cause did not the use or exhibition of a trial, gave Before the State appellant written notice of its intent to seek finding, merely an affirmative but this notice alleged deadly weapon” “use of a without Likewise, special further elaboration. judgment merely and the issue referred objected “deadly weapon.” Appellant special submission of the issue on the deadly weapons that the involved the case solicitation; did not facilitate he no made .the Greenwood, Austin, Roy appellant. objection E. for at time to the State’s failure to type involved. Weeks, Attorney, P. David District Hunts- fact, response inquiry to an the trial ville, Paul, Austin, Atty., Matthew State’s court, defense counsel stated he had State. problem wording with the

weapon special issue. appellant

The evidence trial shows that wanted his ex-wife’s husband dead. current OPINION ON APPELLANT’S PETITION 1, 1991, appellant On November hired Wil- FOR DISCRETIONARY REVIEW kill At liamson and Williams to the husband. KELLER, Judge. date, accomplices a later the two returned to appellant pick up handgun. meet When jury appellant A convicted of solicitation of purpose at trial in re- asked what was the capital punishment murder1 and assessed hometown, turning Williamson forty years confinement. A gun pick up stated that it was “To that he submitted, special jury issue was an- job.” Similarly, had to use in the Williams affirmatively, swered the issue and the trial said, “Yes, pick up we went back to a revolv- deadly weapon finding. court entered a him, gun supposed er from granted Court of affirmed. We appel- used.” shows that The evidence also propriety view to consider the of the court of shotgun lant later the men appeals’ disposition issues: target much easier to hit their would be (1) whether the State’s notice of intent handgun. than with the deadly weapon finding, seek a jury, Appeals, relying upon issue the trial Hub submitted to the The Court failing (Tex.App.— court’s are defective for bard 809 S.W.2d 316 1991), object designate specific physical part on other as the Fort Worth reversed in alleged deadly weapon, grounds, (Tex.Crim.App whether .1995), notice was suffi is authorized held the State’s and that had claimed no sur inchoate offense where cient accomplices prise prejudice. held are exhibited to the of- The court further the trial court’s fense.2 We will affirm. law does felony parly make the other a to its 1. The offense is defined in Texas Penal 15.03(a) as follows: commission. if, A commits an offense with intent committed, appellant’s grounds he be for review two These commands, requests, four, to induce an- we will refer but for ease of discussion specific other to conduct under grounds appellant's first and second to them as surrounding the circumstances his conduct as respectively. for review be, the actor believes them to would constitute rights not violat specific weapon process due to indicate the defendant’s timely request Gray for relief. ed absent regard used. to the authorization for With -, -, finding, the court noted our statement Netherlands 2074, 2083-2085, 135 L.Ed.2d 116 S.Ct. theoretically susceptible that “all felonies are Miller, (1996); 474-475 Greer v. to an affirmative of use or exhibition n. 97 n. 107 S.Ct. 3109 766 State, deadly weapon,” of a Patterson v. (1987). Gray, L.Ed.2d 618 the defendant (Tex.Crim.App.1989), and process be claimed that he was denied due concluded that gave only day’s notice of cause the State one exception. capital murder is no The Court of planned to to the evidence it use substantiate handgun held that the and at -, charges against him. 518 U.S. weap used in the offense because the 135 L.Ed.2d at 473. The S.Ct. given ons were to and Williamson Williams that, if the defen Supreme Court held even during the course of the solicitation. We dant’s notice of evidence claim could ever grounds by appellant. now turn to the raised violation, process it did not constitute a due process in violation in fact constitute due II. re that case because the defendant did not continuance, quest a which would have A. any prejudice he Id. at remedied suffered. Appellant complains that the State’s no -, 2083-2085, 116 S.Ct. at tice, issue, special and trial court’s Greer, L.Ed.2d at 474-475. judgment specify type fail to process addressed whether due was violated weapon Although appellant involved. failed designed prosecutor question when a asked a object generality to of the notice and impermissible postarrest elicit issue, he contends that his case is (after warnings given) silence Miranda Patterson, governed by parte Ex permit trial refused an an but the court (Tex.Crim.App.1987). parte In Ex Pat swer. 483 U.S. at 107 S.Ct. at terson, we held that a lack notice process The existence of a due 3108-3109. of the intent to seek a depended upon violation whether the trial egregious is fundamental error and causes “fundamentally unfair” was rendered relieving the defendant of the necessi harm — ty merely asking question. Id. The Su objecting any stage trial— preme trial Court held that was “given prior because the defendant no fundamentally rendered unfair because the weapon indication that the nature of the used Id. at trial court curative instructions. case, particular was to be a issue in the 766, 107 at 3109. The defendant S.Ct. consequences liberty.” additional vis-a-vis his claimed that the curative instructions were case, present Id. at 777. in specific enough, but the Court found such “general” State’s notice did inform claim to be without merit because defense that “the nature of the used” would request counsel did not additional instruc appellant’s pa be an issue at trial and that 8, 107 tions. Id. at 766 n. at 3109 n. 8. S.Ct. eligibility role could be restricted as a result. Greer, Gray In both the defendant Appellant’s case does not fall within the rule remedy position request in a for his was parte in announced Ex Patterson. contrast, in perceived problem. By relying upon parte In addition to Ex position parte in Ex of the defendant Patterson, appellant analogizes to indictment completely Patterson could be blindsided: he argue specify law to the failure to the may that an issue even exists idea pro type denies him due concerning the use of a be- prevent depriving any cess him of notice and give has failed to notice cause the State ing mounting him finding. from an effective defense. of its to seek a intent But, request Gray we believe failure to case like Greer specificity process such claim parte defeats due Ex Patterson. unlike might Supreme otherwise exist. The was notified that the use not blindsided —he situations, was an issue Court has held some a of a have, not, request authorized for the offense of solicitation. As and he could but did addi- stated, specificity. appeals tional In the absence of a re- court of our decision quest, recognized we see no fundamental unfairness that all felonies Patterson State failing type weapon involved. theoretically susceptible to an affirmative finding on the use or exhibition As for the claim that the Further, we have held Patter defective, nothing see in Article 42.12 of we phrase “construed the ‘used or son State the Code of Criminal Procedure to deadly weapon’ by opening it to exhibited a specific type denote understanding in possible [the] the broadest Article 42.12 involved. See reasonably suscepti context of which it was § 3g(a)(2).3 Appellant relies on Turner v. ordinary English.” Tyra v. ble in (Tex.Crim.App.1983). S.W.2d Any (Tex.Crim.App.1995). S.W.2d Turner, judgment In a contained deadly weapon qualifies if it employment of a deadly weapon.” general to “a Id. reference felony,” Id. Patter “facilitates the associated But, two at 88. the trial court also made use, or its in son v. 769 S.W.2d at deadly weapons: separate findings of itself, of the offense on fulfills an element fists, (2) a The hands and stick. Id. trial, Tyro, 897 expressly trial court ordered the former find ing incorporated judgment into the but exclude the offense of We see no reason to finding. made no such order for the latter susceptible a from felonies solicitation that the was insuffi Id. We held deadly weapon finding. The of solici- deadly support cient to “hands and fists” as “requests, penalizes tation someone who general weapons and that the reference commands, com- to induce” the deadly weapon could not of certain offenses.5 Texas Penal mission be construed to include the stick. Id. at 90. 15.03(a). Certainly, § if a defendant proposition Turner stands for the that the person and com- pointed gun a at another express specifically items inclusion of named person to in conduct manded that deadly weapons as results the exclusion felony, constituting degree first specifically items not mentioned.4 have “used or exhibit- that defendant would case, specifically present no items were deadly weapon during ed” a the offense deadly weapons judgment. named as reasoning applies to solicitation. This same argues except further absent “request” “attempt or an to induce” designation specific weapon, jury’s merely persuasive of the of a is that the use subjected appellate finding persuasive impact cannot be The rather than coercive. sufficiency purposes. disagree. request may part view for We of the of the be a appellate may An court the record attempt examine induce conduct to determine whether there is sufficient evi- of the solicita- strengthening those elements any object as a support upon dence to the use of based The offense need not be tion. deadly weapon Hence, exhibiting in the case. We overrule merely words alone. ground appellant’s accomplice during first deadly weapon to an transaction be sufficient B. finding especially support deadly weapon — where, weapons present next turn to com We weapon finding deadly weapons per se.6 plaint is not were the defen- desig- in Turner is that 4. Another difference 3.The Code does objected con- not been notified dant cerning that he had deadly weapon as a firearm if there is a nate the the use that the was a firearm. though 3g(a)(2). Even the evidence in the jury 5. All three theories were contained used case shows that the charge in this case. firearms, in fact in this case did not made Court, argued before this his brief weapon was a firearm. already complete before that the solicitation was But, appellant weapons provided. this claim in his brief to not raise Accordingly, appellant’s “during the commission of a offense.”1 The the use or exhibition of review is overruled. decision whether occurred the com- judgments The courts below mission of the offense is a factual one. AFFIRMED. weapon must have been used or exhibited factually complete, before the offense was OVERSTREET, J., dissents. is, before it was finished. Whether WOMACK, Judge, concurring. (because legally complete offense was each committed) join opinion had Court. the elements been used, not the issue. point amphiboly I write to out an that can judges say arise when an offense was “com- hypothetical trespasser If entered plete.” “complete” “having sense of One property picked without a parts, lacking anything”; all its another up trespassed, one to use as he he would Dictionary is “finished.” American Oxford deadly weapon during have used a the com- (1980). sense, In the former an offense offense, although mission of the its use did complete legally complete soon as — —as begin legally before the offense was each element has been But committed. plete. does not mean that the offense is finished as Whatley’s legally have been a matter of fact. complete if he committed each of the element example, For if an actor has notice that meeting solicitation offense at his first entry property onto forbidden knows Williams, Williamson and but that does not owner, he does not have the of consent the factually mean the offense was finished at trespass legally criminal complete the in- requesting, that time. He was still com- property. stant the actor enters the But the manding, attempting to induce them to factually offense is not complete until the commit the murder when he introduced the property. actor leaves the handgun into the offense. The affirmative trying When we are to decide an whether finding supported by the evidence. complete, offense was we must know whether legally complete we mean factually BAIRD, Judge, concurring dissenting. plete. The confusion of these different meanings “complete” of can lead to incorrect majority’s I concur in the treatment of the decisions. Ante, ground first for at 74-76.1 review. 42.12, However, § 3g(a)(2) reasons,

Article of the Code of the for dissent requires majority’s Procedure it to be shown to appellant’s treatment of sec- deadly weapon Ante, ground was used or exhibited ond at 76-77.2 Instead, Moreover, Appeals. only argument Appeals his that ad- before even if the Court of had issue, court was that a could dressed the did not raise apply timing petition discretionary to the offense of solicitation where the issue in his for only was exhibited to accom- view before this Court. plices timing to the offense. of appellant’s Flight use or exhibition of 1. Or immediate therefrom. us, properly express is not and we is not involved in this case. opinion on the matter. Judge Appellant’s ground Baird contends that we should address 1. first for review asks: timing language issue because of in the some finding "deadly weap- Can an affirmative of Appeals’ opinion. Court While a Court of made, indictment, on” be where neither the nor discretion, Appeals may, its address errors not "notice,” subsequent the State's written nor the it, briefed before Rezac instruction, designate any spe- issue ever (Tex.Crim.App.1990), there is no indication physical object alleged "deadly weap- as the cific on” in the case? Appeals intended such an exer- cise in the case. That court did not state addressing unassigned that it was does error nor Appellant’s ground review asks: second for opinion indicate in fashion that it believed offense, timing prosecution use or exhibition In the inchoate murder, deadly weapons to be an issue in the case. such as solicitation of under Tex. Penal

I. II. majority holds the mere exhibition of A. accomplice during to an Most offenses are when each of may be solicitation transaction sufficient to their have Barnes v. elements occurred. support for the of- Ante, However, fense solicitation. (Tex.Cr.App.1991)(citing States v. United majority apply holding does not Cir.1984)). (9th Smith, 734, at 740 F.2d the facts of instant case. Instead However, “continuing offenses some majority uses a footnote to hold issue is nature.” To determine whether an offense is not before us it was not raised employed continuing we utilize rationale Appeals, Court of addressed Supreme United States Court Appeals, by appellant in petition or raised his States, 112, 115, Toussie v. United Ante, discretionary for n. review. (1970), 858, 860, S.Ct. L.Ed.2d 156 correct, the footnote is the second If where the Court stated: ground for should be dismissed as review continuing ... the doctrine offenses improvidently granted because does not applied should be limited circum- impact Appeals. decision Court such a result not be stances should (Court See, Tex.R.App.P. 200 of Criminal explicit language reached unless “decisions” of the courts of reviews compels such substantive criminal statute appeals.) Consequently, majority’s dis- or the crime is conclusion nature cussion review is Congress assuredly such must nothing more obiter dictum. than continuing intended that it be treated os a contrary to footnote the issue one. Appeals. was addressed Barnes, In theft State contended State, Specifically, responding to continuing should as a offense. be treated points challenging deadly weap of error Id., Specifically, 824 S.W.2d State, finding, v. on relied on Patterson 769 so that State asked us to construe the statute 938, (Tex.Cr.App.1989), S.W.2d contend every day a control over defendant exercised deadly ing: “In order a to ‘exhibit’ separate stolen a property would constitute consciously displayed during need be explicit refused offense. We required felony the commission of of compel such a language the statute did not appeal, pg. on direct 7.3 fense.” State’s brief was conclusion and the nature of the offense agreed and “A The Court of held: in legislature such that the must given handgun to William continuing tended for theft to be treated as a son and Williams in the course the solicita Toussie). Id., (citing a offense. at 562 Such State, 10,1994 Whatley op. slip pg. tion.” v. judicial “the usurped construction would have (Tex.App Dist.] WL [14 . —Houston legislature con authority of the in an area 1994). Therefore, ground for re the second exclusively by trolled it.” Ibid.4 impact view does the decision Appeals. Accordingly, majority should B. apply holding to the instant case and appellant deadly Appellant if convicted decide used or exhibited a was of solicitation weapon during pursuant murder Tex. Penal Code the commission the solicita 15.03, § provides: Ann. flight tion or in therefrom. which immediate 15.03, explicitly Legislature § a we noted the Code Ann. is the "use exhibition” of Barnes allowable, deadly Organized where eventual at- designated Engaging the offense of tempt weapons against complaining to "use" 71.03(4), Activity, § Tex. Penal made, only place was and where witness ever Barnes, continuing S.W.2d a offense. weapons ap- "exhibited” was between 886, State, Cf., v. 898 S.W.2d Lawhorn during accomplices pellant and the solicita- his (Tex.Cr.App.1995)(Legislature did not 889-890 tion transaction? escape as a intend for statute be construed offense.). emphasis continuing supplied unless indi- 3. All otherwise cated. if, A commits an with intent B. capital felony felony of the first The record established that on November committed, degree be requests, he 1, 1991, accomplices, paid appellant met his

mands, another to induce contract, gave on a them murder $700.00 specific conduct under the photograph them of the intended victim surrounding circumstances conduct as his map. and a had the intent to have be, the actor believes them to consti- would money in- the victim murdered and used party tute or make the accomplices carry duce his out the murder. to its commission. During meeting each of this the elements occurred; therefore, solicitation the offense legislature designated has not 15.03 complete. appellant was continuing as a offense. the of weapon during use or exhibit of solicitation complete fense when the meeting or in November immediate defendant has intent and induce an acts to flight therefrom. engage in other to felonious conduct. State complete, was two the solicitation Brinkley, (Tex.App. v. 764 S.W.2d After meetings additional occurred. On November 1989); and, —Tyler Majid 4, 1991, gave appellant met and the accom- (Tex. 1986). 405, 407-408 App. Paso— El handgun. plices a On December appellant accomplices with one of met III. shotgun. Only him these meetings subsequent is there A deadly weapon. Because the provided fire- continuing Because solicitation is not a of- arms, is not autho- fense, appro- affirmative rized. priate, the prove State must either use or exhibition of a Accordingly, dissent to the resolution commission the offense or in the immedi- 42.12, § 3g(a)(2). ate therefrom. Art. Patterson 940- (Tex.Cr.App.1989), we held weapon finding is appropriate if a

weapon is used or exhibited to facilitate the Id., charged

commission of the offense. explained:

940. We ... ... deadly weapon during [U]sed Terry parte Ex HARRIS. the commission of the means that No. 72778. employed or uti- lized order to purpose. achieve its Court of Criminal of Texas. exhibited a deadly weapon [and] means June was consciously shown or displayed during the commission

offense. (internal omitted).

Id, quotations at 941 words, impossible it is for the

weapon to be used or exhibited in manner already completed

to facilitate an offense. appel- the instant if the

lant not use or exhibit a

during the commission of the therefrom,

in immediate is not authorized.

Case Details

Case Name: Whatley v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: May 14, 1997

Citation: 946 S.W.2d 73

Docket Number: 154-95

Court Abbreviation: Tex. Crim. App.